The Queen (on the application of AR (A Child), by his litigation friend, MP) v The London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Singh,Sir Patrick Elias |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1185 |
| Docket Number | Case No: C1/2020/1083 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1185
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
Lord Justice Singh
and
Sir Patrick Elias
Case No: C1/2020/1083
Ms Caoilfhionn Gallagher QC and Mr Samuel Jacobs (instructed by Just for Kids Law) for the Appellant
Mr Ashley Underwood QC (instructed by Legal Services, London Borough of Waltham Forest) for the Respondent
Hearing date: 30 June 2021
Approved Judgment
Introduction
This is an appeal against the dismissal of a claim for judicial review, which was brought on the ground that the Respondent does not have a reasonable system in place for the provision of secure accommodation to meet requests for such accommodation made by the police pursuant to section 38(6) of the Police and Criminal Evidence Act 1984 (“PACE”).
The claim for judicial review was dismissed by the Divisional Court (Davis LJ and Andrews J) on 16 March 2020.
Permission to appeal to this Court was granted by Nugee LJ on 12 November 2020.
Before the Divisional Court the Interested Parties were represented as well as the main protagonists (in the case of the Education Secretary there were written submissions only). The Interested Parties were not represented at the hearing of the appeal before us. We heard submissions from Ms Caoilfhionn Gallagher QC, who appeared with Mr Samuel Jacobs, for the Appellant; and from Mr Ashley Underwood QC, for the Respondent. I would like to thank them all on behalf of the Court for their written and oral submissions.
Factual Background
The facts of the particular case which have given rise to this appeal can be summarised briefly, since the underlying claim for judicial review was brought as a “systemic challenge” to the arrangements which the Respondent has in place for the provision of secure accommodation for juveniles who were otherwise to be detained in police cells, rather than a complaint on the individual facts of this case as such. The facts of the individual case are set out more fully in the judgment of Andrews J in the Divisional Court, at paras. 15–24.
The Appellant was born on 27 May 2002 and was 16 years old at the relevant time.
On 27 December 2018, he was arrested on suspicion of possession of a knife and robbery, and detained at Lewisham Police Station at around 14:30. The alleged robbery had occurred on 2 November 2018.
On 28 December 2018, the police contacted the Respondent to request secure accommodation at around 17:00. The custody sergeant explained to the social worker, in this case the Manager of the Emergency Duty Team, that secure accommodation was required because of the risks that the Appellant posed to the public. It was suggested that the Appellant could return to his placement overnight, but it was reiterated that the risks to the public posed by the Appellant were too high for him to return to non-secure accommodation. The custody sergeant confirmed with the Team Manager that the Respondent could not source secure accommodation for the Appellant. The reasons given for this were that the notice given was too short, and that all the secure accommodation providers were located outside London. At 17:40, an Inspector approved the decision that the Appellant should therefore remain in police custody until his court appearance the next day.
On 29 December 2018, the Appellant was released from custody and appeared in court at 9:30.
Material legislation
By section 37(15) of PACE it is provided that, in that part of the Act, “arrested juvenile” means a person arrested with or without a warrant who appears to be under the age of 18. For convenience I will use the word “children” to refer to such arrested juveniles.
Section 38(1) of PACE provides:
“Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall … order his release from police detention, either on bail or without bail, unless–
(a) If the person arrested is not an arrested juvenile–
(i) his name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address;
(ii) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;
(iii) in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence;
(iiia) in a case where a sample may be taken from the person under section 63B below, the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable the sample to be taken from him;
(iv) in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property;
(v) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence; or
(vi) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection.”
(b) if he is an arrested juvenile–
(i) any of the requirements of paragraph (a) above is satisfied but, in the case of paragraph (a)(iiia) above, only if the arrested juvenile has attained the minimum age; or
(ii) the custody officer has reasonable grounds for believing that he ought to be detained in his own interests;
(c) the offence with which the person is charged is murder.”
Subsection (6) provides:
“Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies–
(a) that, by reason of such circumstances as are specified in the certificate, it is impracticable for him to do so; or
(b) in the case of an arrested juvenile who has attained the age of 12 years, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him,
secure that the arrested juvenile is moved to local authority accommodation.”
Section 21(2) of the Children Act 1989 (“the 1989 Act”) provides:
“Every local authority shall receive, and provide accommodation for, children–
…
(b) whom they are requested to receive under section 38(6) of the Police and Criminal Evidence Act 1984;
…”
Ms Gallagher also relies on the provisions of sections 22, 22G and 53, in relation to “looked after” children. For my part, I do not consider that it is necessary to set out those provisions here because, as will become apparent, I consider that the central issue in this appeal can and should be determined on the basis of the duty in section 21(2)(b) of the 1989 Act.
I should, however, also mention section 82(2) of the 1989 Act, which provides:
“The Secretary of State may make grants to local authorities in respect of expenditure incurred by them in providing secure accommodation in community homes other than assisted community homes.”
The decision of this Court in Gateshead
Section 21(2)(b) of the 1989 Act was considered by this Court in R (M) v Gateshead Metropolitan Borough Council [2006] EWCA Civ 221; [2006] QB 650, in which the main judgment was given by Dyson LJ, with whom Moore-Bick LJ agreed. Thorpe LJ also agreed with his conclusion and reasoning but gave a short concurring judgment.
The facts of Gateshead can be derived from the headnote and were as follows. The claimant in that case lived with her mother within the area of the defendant local authority. She was voluntarily accommodated by the defendant for various periods until her 16 th birthday, when she discharged herself. In November 2004 she was living in a hostel in Sunderland, outside the defendant's area, when she was arrested on suspicion of wounding with intent, and detained at a police station in Sunderland. At 12.20 p.m. the police station's custody officer spoke to a social worker from the defendant's emergency team, and enquired whether the defendant could provide secure accommodation overnight until the claimant was produced at the Magistrates' Court in the morning. The social worker replied that the defendant could provide an address to which the claimant could be bailed, but not secure accommodation. Since the custody officer was of the view that nothing less than secure accommodation would suffice to protect the public from serious harm from the claimant, he detained her overnight at the police station, pursuant to section 38(1) of PACE. The claimant sought judicial review of the defendant's failure to provide her with secure accommodation, contending that the defendant had breached its duty, under section 21(2)(b) of the 1989 Act. The Court of Appeal in due course granted permission to bring the claim for judicial review and retained the substantive hearing to itself.
The Court held that the duty under section 21(2)(b) of the 1989 Act to respond to a custody officer's...
To continue reading
Request your trial